Every time you fire someone, you run the risk of being sued. But your chances of getting hit with a big jury verdict or a hefty legal bill defending yourself can be drastically reduced with proper planning. That’s what one employer found when, because it carefully laid the groundwork to dismiss an employee accused of assault, it was able to get the worker’s lawsuit thrown out of court before trial.
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Supervisor Scuffles with Employee
Jonathan Hicks, a black maintenance supervisor for Pacific Bell, and Kenneth Vigil, a white Pacific Bell employee who worked under Hicks, were at a customer job site in Southern California repairing a phone system. When Hicks informed Vigil it was time to clean up and go to another job, Vigil said he was going to take a lunch break first. Hicks then allegedly verbally and physically assaulted Vigil in front of customers, grabbing and shaking him, even after Vigil tried to back away.
Thorough Investigation
Michael Gutierrez, Hicks’ immediate supervisor, who is also black, investigated the incident. He reviewed the police report which included statements from three witnesses who confirmed Vigil’s account of the incident. Gutierrez took the extra step of personally speaking with these witnesses to corroborate their statements. Then he spoke with Hicks, who denied the assault and claimed he had only grabbed Vigil to hold himself up after losing his balance. Hicks was asked to put his version of the facts in a handwritten statement.
In his report, Gutierrez concluded that Hicks had engaged in gross misconduct in violation of company policy and recommended he be fired. The regional manager, A. Cruciotti, reviewed Gutierrez’s report and the supporting evidence, and then approved the discharge.
Employer’s Good Faith Belief Justifies Dismissal
Hicks brought a lawsuit against Pacific Bell. He claimed the discharge amounted to race discrimination and violated an unwritten promise that he would only be fired for good cause. But Pacific Bell asked the lower court to dismiss the case, pointing to its extensive investigation as proof of its good faith.
The Court of Appeal sided with Pacific Bell. The court said even if the conclusion that misconduct occurred is wrong, an employer isn’t liable as long as the determination was made in good faith and wasn’t a pretext for illegal discrimination. That’s because courts will not second-guess your good faith business judgment.
In light of its meticulous and extensive investigation, it was reasonable for Pacific Bell to believe the witnesses. And there was no evidence that the company’s conclusion that Hicks had violated Pacific Bell policy was insincere or a pretext for discrimination. Therefore, the court upheld the dismissal of Hicks’ case.
Tips for Making Termination Decisions That Will Hold Up
Because of the ever-increasing risk of employee lawsuits, it’s important to approach every termination as one that will result in an employee lawsuit. The Pacific Bell case provides valuable insights on how to conduct an investigation that will help buttress your decisions if they are challenged in the future:
- Choose a neutral investigator. Select a manager or human resources staffer who is neutral and not implicated in the complaint or incident.
- Interview all witnesses. The investigator should interview all employees and witnesses who may have information about the incident, including the complaining employee and the alleged offender. It’s also a good idea to have witnesses sign a written statement of what occurred.
- Follow company policy and practice. Courts will often examine the employer’s termination policy and past practice to determine whether the challenged firing is consistent with the policy. If it’s not, be prepared to explain your legitimate business reasons for your action.
- Put conclusions in writing. The investigator should reach a decision about whether the information gathered supports termination, and the reasons for the conclusion should be documented in writing. Choose your words carefully and stick to the facts because your paperwork may have to be disclosed in the future if a lawsuit is filed.
- Review termination decision with others. To ensure that important items haven’t been overlooked, step back and have another manager carefully review and analyze the situation before you make a final decision.